13:0392(65)CA - Army and Air Force Exchange Service (AAFES), Lowry AFB Exchange, Ft. Carson, CO and AFGE Local 2865 -- 1983 FLRAdec CA



[ v13 p392 ]
13:0392(65)CA
The decision of the Authority follows:


 13 FLRA No. 65
 
 ARMY AND AIR FORCE EXCHANGE
 SERVICE (AAFES)
 LOWRY AIR FORCE BASE EXCHANGE
 FT. CARSON, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2865
 Labor Organization
 
                                       Case Nos. 7-CA-653 
                                                 7-CA-712
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the consolidated complaint and
 recommending that the complaint be dismissed.  Thereafter, the General
 Counsel filed exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings and conclusions as modified herein, and rejects his
 recommendation that the complaint be dismissed.
 
    The Judge found that the Respondent did not violate section
 7116(a)(1), (5) and (8) of the Statute /1/ when it required the Union to
 pay $93.50 as a condition precedent to providing the Union with certain
 overtime records.  While the Judge found that the Respondent had a duty
 under section 7114(b)(4) of the Statute /2/ to provide the Union with
 data normally maintained relating to unit employees' overtime, he
 concluded that the Respondent's obligation did not extend, as alleged,
 to providing the Union, free of charge, with copies of relevant
 documents.
 
    The Authority adopts the Judge's threshold finding that the
 Respondent had a duty under section 7114(b)(4) to provide the Union with
 the unit employees' overtime data sought herein.  /3/ However, contrary
 to the Judge, and in accordance with our decision in Veterans
 Administration Regional Office, Denver, Colorado, 10 FLRA No. 78 (1982)
 (issued subsequent to the Judge's Decision herein), the Authority finds
 for the reasons stated in Veterans Administration that the Respondent's
 obligation to "furnish" such data requires the Respondent to provide a
 copy without cost to the exclusive representative.  Accordingly, the
 Respondent's refusal to do so constituted a failure to meet the duty to
 bargain in good faith and noncompliance with section 7114(b)(4) of the
 Statute in violation of section 7116(a)(1), (5) and (8) of the Statute.
 /4/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that Army and Air Force Exchange Service (AAFES), Lowry
 Air Force Base Exchange, Ft. Carson, Colorado, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to provide, without charge, to the American
 Federation of Government Employees, AFL-CIO, Local 2865, the employees'
 exclusive representative, a copy of the requested data relating to unit
 employees' overtime.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Provide, without charge, to the American Federation of Government
 Employees, AFL-CIO, Local 2865, the employees' exclusive representative,
 a copy of the requested data relating to unit employees' overtime.
 
    (b) Post at its facilities at the Army and Air Force Exchange
 Service, Lowry Air Force Base Exchange, Ft. Carson, Colorado, copies of
 the attached Notice on forms to be furnished by the Federal Labor
 Relations Authority.  Upon receipt of such forms they shall be signed by
 an appropriate official of the Army and Air Force Exchange Service,
 Lowry Air Force Base Exchange, Ft. Carson, Colorado, and shall be posted
 and maintained by him for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  The appropriate official shall take
 reasonable steps to insure that such Notices are not altered, defaced,
 or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VII, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the other allegations of the consolidated
 complaint in Case Nos. 7-CA-653 and 7-CA-712 be, and they hereby are,
 dismissed.  
 
 Issued, Washington, D.C., November 9, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to provide, without charge to the American
 Federation of Government Employees, AFL-CIO, Local 2865, our employees'
 exclusive representative, a copy of the requested data relating to unit
 employees' overtime.  WE WILL NOT in any like or related manner
 interfere with, restrain, or coerce our employees in the exercise of
 their rights assured by the Statute.  WE WILL provide, without charge to
 the American Federation of Government Employees, AFL-CIO, Local 2865,
 our employees' exclusive representative, a copy of the requested data
 relating to unit employees' overtime.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region VII,
 Federal Labor Relations Authority, whose address is:  Federal Building &
 U.S. Customs House, 1531 Stout Street, Suite 301, Denver, Colorado 80202
 and whose telephone number is:  (303) 837-5224.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                      Case No. 7-CA-653, 7-CA-712
    Luther G. Jones, III, Esq.
          For the Respondent
 
    Gavin K. Lodge, Esq.
          For the General Counsel
 
    Before:  ALAN W. HEIFETZ
         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
 of unfair labor practice charges filed on July 15 and August 19, 1980,
 with the Federal Labor Relations Authority.  Consequently, on September
 24, 1980, the Regional Director, Region VII, of the Authority issued an
 Order Consolidating Cases, Complaint and Notice of Hearing alleging that
 Respondent had violated Section 7116(a)(1), (5) and (8) by:  (1)
 refusing to furnish the Union data that the Union had requested
 consisting of certain overtime and compensatory records of unit
 employees;  and (2) requiring the Union to pay $93.50 as a condition
 precedent to its furnishing the Union certain sanitized overtime
 records.
 
    A hearing was held on February 23, 1981, in Denver Colorado.  All
 parties were afforded full opportunity to examine witnesses and to
 introduce evidence.  Post hearing briefs have been filed and considered.
  Upon the entire record, including my observation of the witnesses and
 their demeanor, I make the following findings, conclusions and
 recommendation.
 
                             Findings of Fact
 
    During a publicity drive for the Union, William Bleau, then a
 national representative for the Union, began an investigation of
 Respondent's pay practices as a result of certain information brought to
 his attention by employees at the Army and Air Force Exchange Service
 (AAFES), Lowry Air Force Base Exchange.
 
    By letter dated June 26, 1980, Mr. Bleau requested under Section
 7114(b)(4) of the Statute "all records on overtime or compensatory time
 given to Bargaining Unit employees from 30 March 1978 to present."
 Responding on July 2, 1980, not to Mr. Bleau, but rather to Carol
 Harper, president of the Union, Respondent advised that " . . . since
 this matter carries Privacy Act and Freedom of Information Act (FOIA)
 implications, (it has been forwarded) as a FOIA request to Headquarters,
 AAFES, for disclosure determination." /5/
 
    On July 8, 1980, Mr. Bleau again made a written request under Section
 7114(b)(4) of the Statute for the data he had requested in his June 26
 letter.  A "Memo Routing Slip" dated July 10, 1980, informed Mr. Bleau
 that the matter was "being reviewed by General Counsel as previously
 indicated in our letter to Carol Harper dated 2 July 1980." Shortly
 thereafter, Mr. Bleau filed the first charge in this case.
 
    By letter dated July 30, 1980, Respondent advised the Union that (1)
 "compensatory records cannot be provided";  (2) overtime records would
 be provided in a sanitized form to comply with the Privacy Act;  and (3)
 the Union would have to pay, in advance, $93.50 to cover the estimated
 cost to Respondent for processing the request.  This response prompted
 the second charge in this case.
 
    The Union made no further request or inquiry with regard to the
 records it sought.  It never sought merely to inspect the records or to
 copy them by its own means.
 
    Respondent does not maintain any records of compensatory time.  The
 charges required of the Union for reproduction of the data were
 estimated under its Freedom of Information Request regulations and those
 charges have not been challenged as being unreasonable.  Respondent's
 regulations provide several reasons for waiving charges for document
 reproduction including one when the recipient is engaged in "a nonprofit
 activity . . . for public safety, health or welfare." On one occasion,
 Mr. Bleau received at no charge a copy of an affidavit in Respondent's
 possession.  Respondent does not charge its contractors and vendors for
 copies of materials sent in the regular course of business.
 
                        Discussion and Conclusions
 
    The General Counsel correctly argues that AAFES has a duty under
 Section 7114(b)(4) of the Statute to provide the Union with data,
 normally maintained by it, relating to employee overtime and
 compensatory time, for use in investigation of employee concerns
 regarding pay matters.  Respondent does not deny this obligation, but it
 correctly counters that it is not an unfair labor practice to fail to
 produce documents that do not exist.  /6/ The General Counsel concedes
 this point with regard to the nonexistent compensatory time records, but
 also argues persuasively that Respondent's less than candid statement
 that "compensatory records cannot be provided" reveals less than a
 forthright approach to labor-management relations.  Respondent, on
 brief, acknowledges a "poor choice of words".
 
    The sole issue remaining in this case is whether a Union is entitled
 to receive, free of charge, copies of documents to which it may lawfully
 have access under the Statute.  /7/ The Statute is silent as to the
 conditions under which an agency is to "furnish" information.  The
 legislative history is similarly silent, and Counsel for the General
 Counsel has not cited, nor is there any, decisional authority for the
 proposition that an agency must assume the financial obligation arising
 out of the Union's request for information.  As a matter of fact, my
 learned colleague, Administrative Law Judge Salvatore J. Arrigo, after
 analyzing similar cases before the National Labor Relations Board which
 found that an employer was not obligated to assume such a financial
 burden, concluded that the same result should obtain in the public
 sector.  /8/ I reach the same conclusion and find additional support for
 it in the legislative history as it pertains to official time.
 
    Section 7131 of the Statute pertains to official time to be granted
 employees conducting activities on behalf of their unions.  That section
 and its legislative history speak to four circumstances under which is
 raised the question who should bear the cost of an employee's time:  /9/
 (1) where the employee represents an exclusive representative in the
 negotiation of a collective bargaining agreement;  (2) where the
 employee engages in activities relating to the internal business of a
 labor organization;  (3) where the employee participates in a proceeding
 before the Authority;  and (4) in other circumstances where the employee
 represents, or is represented by, an exclusive representative.  In (1),
 official time shall be granted;  in (2), the employee shall be in
 nonduty status;  in (3), the Authority shall determine whether to
 authorize official time;  and in (4), the agency and the union,
 together, are to determine the amount of official time which will be
 "reasonable, necessary, and in the public interest".
 
    The Statute recognizes then, that certain specified activity warrants
 the "expenditure" of official time by the agency;  certain specified
 conduct does not;  and all other related activity requires agreement of
 labor and management as to what is "reasonable, necessary, and in the
 public interest." Although the Senate version of the Statute contained
 only two parts in its provision for official time, one disallowing
 official time for internal union activities and the other providing for
 limited negotiation of official time for contract negotiations, the
 legislative history noted that nothing in the provision prohibited an
 agency and a union from negotiating for official time to cover
 representational activities, other than contract negotiations, where
 consistent with the purposes of the Statute, one purpose being the
 efficient operation of the government.  /10/ In the legislative history
 of the House of Representatives version, which did become law,
 Congressman Ford noted that official time for preparation for such
 "interface" activities as "negotiations, grievances, negotiability
 disputes, and unfair labor practices" is the subject of negotiated
 agreement between the agency and the exclusive representative.  /11/ And
 as passed, the Statute provides at the outset in Section 7101 that, "The
 provisions of this chapter should be interpreted in a manner consistent
 with the requirement of an effective and efficient Government."
 
    Thus Congress, in its consideration specifically of official time,
 recognized that consistent with "efficient" operation of the government,
 expenditure of official time for various unenumerated labor-management
 activities should be permitted where it is negotiated between the agency
 and the union and where such expenditure would be "reasonable,
 necessary, and in the public interest".  Parallel considerations dictate
 application of such a principal to an agency's obligation to furnish
 photocopies of records.  Efficient operation of government would not be
 consistent with an obligation to furnish photocopies of whatever an
 exclusive representative may demand willy-nilly.  Conversely, a
 reasonable response to a request for photocopies of a few pages,
 especially where the request would save the exclusive representative the
 time of hand copying and might also save the agency time in resolving
 any related dispute, would not be to require the union to fill out a
 long series of forms and to submit a check for a few cents.  Somewhere
 in between there is grounds for negotiation over what would be
 "reasonable, necessary, and in the public interest".  In considering the
 obligation of an agency to "furnish" data to an exclusive
 representative, Congress made no finding of any specified circumstance
 under which the agency must assume a financial obligation in connection
 with the requirement that it furnish the data.  Since the Statute is
 silent in that regard, the inescapable conclusion is that an agency has
 no affirmative obligation to provide photocopies of data at no charge.
 However, since the Statute is likewise silent as to any circumstances
 under which an agency may not provide free photocopies, one must also
 conclude that there is no statutory prohibition against that practice.
 Finally, since nothing in the Statute prohibits an agency and a union
 from negotiating for free photocopies of data where consistent with the
 purposes of the Statute, that avenue provides a proper approach to
 resolving such requests.
 
    Having found and concluded that the Respondents did not violate the
 Statute as alleged, I recommend that the Federal Labor Relations
 Authority issue the following order pursuant to 5 CFR 2423.29(c):
 
                                   ORDER
 
    ORDERED, that the complaint in Case Nos. 7-CA-653 and 7-CA-712 is
 dismissed.
 
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
 Dated:  April 24, 1981
          Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1), (5) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /2/ Section 7114(b)(4) provides:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                .  .  .  .
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data--
 
          (A) which is normally maintained by the agency in the regular
       course of business;
 
          (B) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining(.)
 
 
    /3/ There is no contention before the Authority that the data
 requested herein is "prohibited by law" from being furnished.  Veterans
 Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, n. 5
 (1982).
 
 
    /4/ See also Veterans Administration, Iron Mountain, Michigan, 10
 FLRA No. 79 (1982).
 
 
    /5/ Mr. Bleau did not see this letter until some time after July 2.
 
 
    /6/ Internal Revenue Service and Brooklyn District Office, IRS, 1
 FLRA No. 89 (July 31, 1979).
 
 
    /7/ In his opening statement, Counsel for Respondent opined that the
 obligation to provide information was subject to the Privacy Act, 5
 U.S.C. 552;  however, this contention was not pressed on brief.  Counsel
 for the General Counsel, in his brief, correctly cites cases under the
 Executive Order which recognize that the right to information arises
 independently from the Privacy Act and the Freedom of Information Act.
 However, Counsel for the General Counsel would have me go further and
 find that an offer of sanitized records violates the Union's rights
 under the Statute.  That I cannot do.  In order to reach that issue, the
 records themselves would have to be in evidence in order to balance the
 conflicting rights of the Union's access to the information and the
 individual's right to privacy.  Here those records are not in evidence
 and, therefore, the question whether they may be sanitized is not
 properly before me.
 
 
    /8/ Veterans Administration Regional Office, Denver, Colorado, Case
 No. 7-CA-365, OALJ-81-032 (January 23, 1981).
 
 
    /9/ An employee's time is no less a cost than is a photocopy of a
 document.  It is no less true today that "our costliest expenditure is
 time." Theophrastus (c. 370-287 B.C.), quoted in Diogenes Laertius'
 Lives and Opinions of Eminent Philosophers (3rd c. A.D.).
 
 
    /10/ Legislative History of the Federal Service Labor-Management
 Relations Statute, Title VII of